Failure to pay Texas child support as ordered can result in an enforcement action.  If the motion for enforcement includes a request for a money judgment for arrearages, the trial court generally may not modify or reduce the amount of the arrearages. In a recent case, a mother challenged a court’s finding there was not an arrearage when the father argued he had shifted the payments from the beginning to the end of the month.

The divorce decree appointed the parents joint managing conservators of their two children with the mother having the right to designate their primary residence.  The mother was required to maintain health and dental insurance for the children and the parties were to equally split the healthcare expenses not paid by insurance.  The father was ordered to pay $1,122 monthly child support and $451.22 monthly medical child support through the Office of the Attorney General (“OAG”). The medical child support was reimbursement for the children’s insurance premiums.

Mother Files Child-Support Enforcement

The mother moved to enforce the child support in September 2020.  She sought $1,573.22 in unpaid child support and $311.21 in medical expenses.  She also asked for attorney’s fees and costs.  The trial court ordered the father to pay $155.83 for medical expenses but denied the mother’s other requests, finding the amount of child-support and medical-support arrearages were $0 as of the date of the hearing.


The mother appealed. She challenged the denial of her request to confirm a child-support arrearage.  Once the movant shows the existence of a child-support obligation and an arrearage, the court has a duty to confirm the arrearage.  Tex. Fam. Code § 157.263(a). Under Texas case law, the trial court does not have the discretion to decrease or forgive a past-due child-support obligation.  The court must base its arrearages calculation on evidence of what has been paid and not just on what is reasonable.  The mother needed to prove the difference between the amount required to be paid and the amount the father actually paid.  She argued there was insufficient evidence to support the trial court’s finding that the father was not in arrears as of the date of the hearing.  She argued there was undisputed evidence showing he failed to make the child-support payments in April 2020.  The father argued that his testimony showed that he made the April payments.

Both Parents’ Testimony Reviewed on Appeal

Both parents testified at the hearing.  The mother testified the father had timely paid the child support through March 2020, but the next payment she received was in May.  The trial court also admitted the OAG’s child-support payment record showing a payment on March 2, 2020 and the next payment on May 1, 2020.  The payment record also showed the father made ten payments in the eleven month period from April 2020 to February 2021.

The father testified that he had waited until the end of the month in April 2020 to make the April payment because his income had been affected by COVID. He testified he made the payment to the OAG’s office on April 30, but the money was taken out of his bank on May 1.  He claimed he kept making subsequent payments at the end of the month and that he had made all of the payments.

Trial Court Finds that Father was in Arrears

The appeals court noted, however, that the decree stated the first support payment was due on May 1, 2019 and subsequent payments were “due and payable on the first of each month thereafter. . . .”  The appeals court noted that the provision required the father to make eleven child support payments between April 1, 2020 and the date of the hearing, but the evidence showed that he had only made ten payments during that period. The appeals court concluded that, even if the father was correct that the April payment had been late, he was still in arrears as of the hearing. The appeals court found the evidence was insufficient to support the finding that he was not in arrears and the trial court abused its discretion in denying the mother’s request to confirm the arrearage.

The mother also argued the trial court abuse its discretion by not awarding her attorney’s fees.  Pursuant to Tex. Fam. Code § 157.167, a person seeking enforcement is entitled to reasonable attorney’s fees and court costs if the court finds the respondent failed to make child support payments.  A court may only waive this requirement upon a finding of good cause and must state the reasons for the finding.

Appeals Court Reverses and Remands Case

The appeals court found the father had failed to make all of the child-support payments and the trial court had determined he owed certain unreimbursed medical expenses.  The trial court did not make a finding of good cause to deny attorney’s fees and costs.

The appeals court found the trial court abused its discretion in not awarding attorney’s fees.  The appeals court reversed the trial court’s denial of the attorney’s fees and remanded for the trial court to either find good cause to deny attorney’s fees and state its reasons for that finding or award reasonable attorney’s fees to the mother.

The appeals court also reversed the denial of the child-support arrearages and rendered judgment confirming the amount of the arrearage.  The court remanded the case so the trial court could determine prejudgment interest.

Is Your Co-Parent in Arrears for Child Support? Call McClure Law Group Today.

If you have not received the child support you are owed, a skilled Texas child support attorney can help.  Set up a consultation with McClure Law Group by calling 214.692.8200.